Problem-Solving Courts in Australia: A Review of Problems and Solutions

ABSTRACT

This article reviews the experience of Australian problem-solving courts since their introduction 20 years ago. The paper begins with a description of these courts, describing how the cautious tone that accompanied their emergence has evolved into blurred definitions and interpretations. We then describe some of the prospects (participant satisfaction, collaboration, and effectiveness) and pitfalls (scope, access, content, and constitutionality) of problem-solving courts. We conclude by forwarding recommendations for the future of these courts (improving access, assessments, services, processes, and research), suggesting that the problems and the solutions must be better defined and resourced for Australian problem-solving justice to be just.

KEYWORDS:

• Problem-solving court
• innovative justice
• therapeutic jurisprudence
• Australian criminal justice

Problem-solving courts, also referred to as specialty courts, have been adopted by criminal justice systems as a means of addressing the underlying causes of crime. The methods and modes through which this aim is achieved can vary greatly between courts and jurisdictions, although each shares a guiding philosophy: by targeting those factors that contributed to the offense, the individual is less likely to reoffend. Problem-solving courts adhere to principles of therapeutic jurisprudence, an interdisciplinary school of thought which posits that by positively impacting the psychological well-being of the accused, better outcomes will be achieved. Operationally, courts seek to “solve problems” related to offending (such as mental illness or substance abuse) through service referrals, treatment provisions, or supervision requirements. While intermediate goals (such as victim satisfaction and perceptions of legitimacy) are often observed and lauded, the overarching aim is to case manage each individual through a collaborative process in order to provide a tailored intervention that reduces the likelihood of recidivism.

In this paper, we review the Australian experience of these problem-solving courts. In the section that follows, we begin with a description of the introduction of problem-solving courts to Australia, highlighting how their place in the nation’s sociolegal culture has shifted from largely cautious to somewhat capricious, particularly in relation to blurred definitions and interpretations. After describing how these courts have actualiszd and evolved, we provide a balanced review of the prospects and pitfalls of Australian problem-solving courts; we first outline some of the problems “solved” by Australian problem-solving courts, and then detail some of the problems that have emerged or lingered. We conclude the paper by providing recommendations for how these courts might be improved, emphasizing that the problems and the solutions must be more clearly defined and resourced for problem-solving justice to be just.

The experiences of Australia’s problem-solving courts

An introduction to problems and solutions in the Australian context

Although problem-solving courts in Australia have seen a journey comparable to those experienced in the United States, the United Kingdom, and elsewhere, there are elements of their evolution that are unique to the Australian context. Nolan (2012) makes the case that American problem-solving courts are characterized by boldness, enthusiasm, and pragmatism, while those outside of the United States have historically embraced the qualities of moderation, deliberation, and restraint. Freiberg (2001b) similarly summarizes that “where the United States treads boldly, rapidly, and sometimes foolishly, Australia tiptoes carefully, slowly, and most times reluctantly” (p. 53). Indeed, problem-solving courts have eased into Australia as pilot programs that are subject to evaluation (Kornhauser, 2018). Since their introduction to Australia in 1997, problem-solving courts have been accompanied by the expectation that the insights provided by requisite evaluations provide “opportunities to correct emerging problems and ultimately to provide a firm basis for informed policy decisions as to whether the pilot programs will become permanent and, if so, in what form” (Freiberg, 2000, p. 233). This initial cautious tone is one of the hallmarks of justice innovation in Australia.

Such a measured approach can be further observed in Australia’s effort to create native solutions to local problems. The Director of the Australian Institute of Criminology has argued that, while people commit crime for a variety of reasons, there are priority areas that should be targeted for intervention: “reducing crime related to drug dependency and mental health, reducing the over-representation of Indigenous offenders and reducing the incidence of domestic violence” (Makkai, as cited in Payne, 2006, p. 1). These issues have been repeatedly referenced as problems in need of solutions, and it is therefore unsurprising that problem-solving courts in Australia have largely centered around these four areas: drugs and alcohol, domestic and family violence, forensic mental health, and Indigenous justice. It is difficult to pinpoint the presence and features of problem-solving courts in Australia on any given day, primarily due to the rapid changes brought about by fluctuations in government and corresponding shifts in criminal justice ideology and policy (Payne, 2006; Stobbs, 2017). However, to the best of our investigation, we find that the majority of Australian jurisdictions have most of these four forms of problem-solving courts.

Yet, critically, the shape of these courts varies dramatically between and within states and territories and across time (and government). Because the sociolegal culture in Australia prioritizes native solutions, each court looks different. Each court varies by eligibility criteria. Within drug courts, for example, only some courts accept offenders who have problems with licit drugs (including alcohol), some require a guilty plea while others feature a suspended plea agreement, some require the offender to want to get clean, some require formal assessments that show a threshold degree of addiction, some serve chronic offenders while others accept first-time offenders, and so on. The processes used in these courts also differ substantially, with unique life cycles of various combinations of entry points, check points, and exit points. Moreover, given that problem-solving courts emphasize collaboration between relevant parties and treatment or service provisions, each court is shaped by the agents and agencies that are available locally. Consequently, it is difficult to provide a broad-brush overview of these courts. Indeed, this individuality has led courts to evolve in ways that stretch the definitions of what a problem-solving court is and is not. Although many Australian “problem-solving courts” share some motivations and aims, there are important procedural distinctions that set them in a group all their own.

Problem-solving courts or problem-oriented justice?

Beyond the traditional problems of substance abuse, mental health, and domestic violence, Australia has other court-based processes and programs that are sometimes nested under the umbrella of problem-solving courts, as they embody some of the guiding principles of these courts. However, we reason that some of these actually fall outside the scope of problem-solving courts. For example, Australia has recently seen the introduction of justice programs based on the “swift, certain, and fair” (SCF) paradigm (based on Project HOPE), such as the COMMIT (Compliance Management or Incarceration in the Territory) program. While some have made impassioned cases that such programs adhere to therapeutic jurisprudence principles (e.g., Bartels, In press), we conclude that they are ideologically and procedurally distinct. Although problem-solving courts and HOPE-like programs share the elements of judicial monitoring and emphasize accountability, problem-solving courts focus on targeted collaborative intervention (Bowen & Whitehead, 2015) rather than deterrence. The seeming “underlying progressive orientation” of Project HOPE should not persuade onlookers that SCF programs are benevolent or rehabilitation-focused (Cullen, Pratt, & Turanovic, 2016, p. 1215). Problem-solving courts focus on underlying criminogenic needs that have been validated as such (such as substance abuse; Bonta & Andrews, 2017), while SCF programs employ the debunked strategy that greater control will solve the problem of offending.

Similarly, other pillars of Australian justice share some principles of problem-solving courts but differ in fundamental ways. Restorative justice (and corresponding practices, such as youth justice conferencing and victim–offender mediation) indeed embodies a therapeutic jurisprudence approach similar to problem-solving courts: both seek to avoid the harms of adversarial court processes, and at times do so in comparable ways. Yet there are two critical differences that we believe separate restorative justice courts from being genuine problem-solving courts. First, restorative justice is frequently used as a method of diversion or case resolution rather than the case management tactics employed by problem-solving courts. Second, restorative justice is argued to address or “solve problems” that do not target the actual causes of offending. There may be good reasons to restore victims and communities, and these restorative processes may have important dividends for offenders, but they fail to address criminogenic needs. Although they are described as problem-solving approaches, restorative justice practices that are used in Australian courts “rely on the capacity of the offender to make ‘the right’ choices once made aware of the consequences of their behaviour” (Bull, 2010, p. 175), and such rational choice perspectives are not effective correctional interventions (Cullen & Jonson, 2012).

Using the same line of reasoning applied above, we find that some of the more “mainstream” problem-solving courts in Australia should not be definitively categorized as such. Berman and Feinblatt (2001) describe five typical characteristics of problem-solving courts: (1) a focus on case outcomes, (2) efforts to reengineer government systems, (3) the use of judicial authority to change the behaviour of offenders, (4) collaboration between criminal justice and social service providers, and (5) roles that defy the traditional for members of the courtroom workgroup. Some Australian “problem-solving courts” lack these defining elements. Instructively, Payne (2006) gathered information about the processes and procedures used in the 19 specialist courts in Australia (as of 2004), concluding that they can be categorized in a three-pronged typology: courts as case managers (characterized by collaboration and program delivery for offenders); courts as specialist adjudicators (characterized by a focus on procedural justice); and courts as diversionary operators and case monitors (characterized by judicial monitoring used for case determination). We suggest that those courts that fit these latter two categories are not problem-solving courts.

First, in courts that serve as specialist adjudicators, “the court is not typically involved in monitoring an offender’s progress on a treatment or rehabilitation plan, but is concerned with appropriate sentencing” (Payne, 2006, p. 3). Indigenous courts fall into this category. Many believe that Indigenous courts are, at their heart, problem-solving courts. This is because they are believed to “solve the problem” of Indigenous overrepresentation in the criminal justice system, accomplished in part through a nonadversarial process that incorporates indigenous solutions to Indigenous problems. Other scholars disagree, suggesting that the political motivation for Indigenous courts sets them apart from traditional problem-solving courts (Bull, 2010). The goal of Indigenous courts, according to Marchetti and Daly (2007), is “increasing the involvement of Indigenous people in court processes and making sentencing hearings more culturally appropriate” (pp. 442–443), toward the end-game of building trust between Indigenous communities and “White justice” actors, with the hope of transforming these racialized interactions. While making no judgement about the value of Indigenous courts, we find that they are procedurally and definitionally distinct from problem-solving courts; problem-solving courts intervene in those factors that cause offending, but cultural sensitivity is not a treatment for a criminogenic need. Similarly, some mental health courts in Australia tend to focus on making justice processes more just rather than actual problem-solving (Davidson, Heffernan, Greenberg, Waterworth, & Burgess, 2017). The Queensland mental health court, for example, determines whether the accused was of unsound mind at the time of the offence and whether he or she is psychologically fit for trial. As with Indigenous courts, these goals are worthy of pursuit, but these forms of mental health courts should not be categorized as problem-solving courts; simply put, they are not actually solving the problems of defendants’ mental health-related offending.

Second, where courts act as diversionary operators, traditional judicial roles are maintained and monitoring takes place in the form of a review that informs case disposition. Many Australian drug courts meet this definition. For example, the MERIT (Magistrates Early Referral into Treatment) program in New South Wales was “designed to assist in diverting drug-related defendants from the criminal justice system into treatment in order to address acute drug use problems within a brief timeframe of the initial arrest” (Howard & Martire, 2012, p. 1). This brief timeframe is so brief that participants volunteer for and enter the MERIT program prior to entering a plea. They return to court for a disposition of their case only after they either successfully complete treatment or terminate their involvement. Although the magistrate is not meant to impose additional penalties to defendants who fail to complete treatment, magistrates are permitted to consider treatment completion in sentencing. The diversion of offenders from a clogged criminal justice funnel through legal lever-pulling should not be confused with problem-solving. Although many Australian drug courts use legal pressure to coerce treatment, programs such as MERIT are focused on diverting offenders rather than collaboratively case managing them. We thus argue that diversionary courts should not be classified as problem-solving courts.

Collectively, Australian problem-solving courts are still relatively young, and thus they appear to be negotiating their identity. One of the meritorious features of justice innovations in Australia is the prioritization of the local context. Here, problem-solving courts focus on local problems and develop local solutions (such as the incorporation of local stakeholders and reliance on local service providers). This tailor-made approach is beneficial insofar as it allows for courts to be flexibly customisable, responsive to the community and the cases that come before them. The downfall of this approach, however, is that it can lead to inconsistency. Such inconsistencies can complicate the seemingly straightforward task of defining what is meant by “problem-solving” in the judicial context, and, as described above, the Australian legal landscape appears to be blurring the categorizing boundaries of problem-solving justice, therapeutic jurisprudence, restorative justice, Indigenous justice, and managerialism (Bull, 2010). Moreover, the initial cautious tone of Australian jurisdictions in adopting problem-solving jurisdictions seems to be waning. The enthusiasm for justice innovation and a solution-focused orientation should not blind the public, practitioners, or policymakers about what problem-solving courts are, can be, and can do.

The problems “solved” by Australia’s problem-solving courts

Australian problem-solving courts boast a number of admirable accomplishments. These specialty courts were introduced cautiously and were initially subjected to considerable scrutiny, and as a consequence, we know a considerable amount about them. Indeed, much of the research on problem-solving courts in Australia is government commissioned, and it includes inspections of many often neglected components of program evaluations, such as process and cost evaluations that look within and without outcome evaluations. These evaluations have helped to open the lid of the “black box” of how, for whom, and under what conditions problem-solving courts work, with several successes noted. Some of the problems of traditional legal processes are resolved or made less troublesome in problem-solving courts, including participant satisfaction, collaboration, and effectiveness.

The solution to participant satisfaction

Evaluations of Australian problem-solving court programs show that victims and offenders are generally quite satisfied with the process (Bull, 2010; Payne, 2006). Traditional courts are criticized for failing to consider (and cater to) the needs of court users (Jeffries, 2005). Although not the explicit goal of problem-solving courts, a number of these specialty courts in Australia have produced marked improvements to participant satisfaction. In an evaluation of a Queensland domestic violence court, for example, victims reported higher ratings of satisfaction and greater perceptions of procedural justice (compared with a traditional court); there was a greater belief that perpetrators were being held to account, and victims and perpetrators reported a greater understanding of court outcomes (Bond, Holder, Jeffries, & Fleming, 2017). Similarly, a process evaluation of a New South Wales drug court reports that participants were generally positive about the program, particularly noting their gratitude for an alternative to incarceration and the access to services to address their problems (Taplin, 2002). Although more rigorous evaluations are needed, the evidence generally indicates that participants of problem-solving courts are more satisfied with the process and the outcome compared to traditional court participants (Casey & Rottman, 2005). More broadly, the rhetoric surrounding problem-solving courts suggest that the public is also happy. In a 2009 survey of public confidence, 59% of respondents described criminal justice sentencing as too lenient, although there was strong support for alternatives to incarceration for mentally ill or drug-addicted offenders (Mackenzie et al., 2012). Problem-solving courts answer such a call, being marketed to constituents as tough but effective (Bull, 2010; Jeffries, 2005), with governments using these courts as campaign points about how they will “solve the problems” of (re)offending.

The solution to collaboration

Problem-solving courts focus on a collaboration between the court and community resources (such as treatment and social service providers). Although a noble goal of many programs, true interagency cooperation is a complex organizational challenge. Promisingly, though, Payne (2006) concludes that Australian problem-solving courts are “characterised by significant professional networks of key players in the delivery of services” (p. 6). Drug courts, for example, rely on legal aid organizations, corrective services, departments of health, detox providers, and substance abuse treatment agencies, with some even incorporating broader social services that target factors such as accommodation, transportation, and education and vocational training (Freiberg, Payne, Gelb, Morgan, & Makkai, 2016). Such cooperative service arrangements have been demonstrably successful, such as in the New South Wales problem-solving court that produced improvements for participants’ health, social functioning, and drug use (Freeman, 2002). In Queensland, collaboration between court actors and community stakeholders was considered a crucial element of the success of its domestic and family violence court (Bond et al., 2017). Multi-strategy and multi-agency collaborations are considered best practices but are difficult to achieve, yet some Australian problem-solving courts have been heralded as creating an exemplary whole-of-government approach (Payne, 2006).

The solution to effectiveness

Given that there are so many elements to problem-solving courts and that these vary in presence and in manifestation from court to court, disentangling what is causing what is methodologically challenging (King, Freiberg, Batagol, & Hyams, 2014). Notwithstanding these difficulties, evaluations of Australian problem-solving courts often show moderate improvements in reoffending outcome measures. Several evaluations of Australian drug courts have demonstrated their effectiveness, although their findings can be mixed depending on the research design (Kornhauser, 2018). Still, statistically significant reductions in recidivism (including reductions in frequency and severity of offending plus greater time to relapse) have been noted in drug courts in New South Wales, Queensland, South Australia, Victoria, and Western Australia (Kornhauser, 2018). Domestic and family violence courts have generally not been subject to rigorous impact evaluations (Bull, 2010), although many intermediate successes (such as case processing times, access to services, and victim satisfaction) have been noted (Australian Law Reform Commission, 2010; Birdsey & Smith, 2012). Reductions in post-program reoffending have been observed in mental health courts in South Australia and Tasmania (Lim & Day, 2014) and with mental health court liaison services in New South Wales (Bradford & Smith, 2009). Evaluations of Indigenous courts often show no effect in reducing reoffending (at least in those studies where a control group is used), yet intermediate outcomes (such as reduced substance use, improved family relationships, and employment) are observed (Fitzgerald, 2008; Morgan & Louis, 2010). Although not definitively the panacea to the woes of traditional adversarial judicial processes, the research evidence is persuasive in showcasing problem-solving courts as a promising alternative.

The problems of Australia’s problem-solving courts

Notwithstanding the benefits derived from problem-solving courts described above, these courts have not been immune to the development of significant problems. In this section, we describe four forms of these problems: scope, access, substance, and constitutionality.

The problem of scope

As described above, Australia has done well to establish problem-solving courts around areas of national strategic priority: drugs, mental health, domestic violence, and Indigenous overrepresentation. Although these broad categories can probably be safely argued to indeed be common and large problems worthy of court-based solutions (for a competing perspective, see Spivakovsky & Seear, 2017), there are still important definitional matters that prove problematic. For a problem-solving court to work, we must first ask: What is a problem? This is not mere semantics, but plays an important role in identifying who or what requires intervention. We know that a problem orientation can be an effective method for defining and tackling “undesirable” behaviour and social conditions. The research evidence on problem-oriented policing (POP), for example, demonstrates that solution-focused strategies can be quite effective (Weisburd, Telep, Hinkle, & Eck, 2015). Yet these POP studies also reveal that, in order for the intervention to be effective, the problem must be clearly defined and the solution must be relevant and targeted (Clarke & Eck, 2005). The principles of effective correctional intervention likewise instruct that treatments must be matched to true criminogenic needs, which can be uncovered through validated assessments (Bonta & Andrews, 2017).

Australian problem-solving courts often lack these elements that would guide the scope of who gets drawn into the court and what gets done to them. The matter of defining scope is critical; as Freiberg (2001a) summarizes, “if a court’s jurisdiction is defined too narrowly, it may not generate enough business to warrant developing an infrastructure; if it is too broad, it may lose its special focus and be unclear about its mission and expertise” (p. 22). There are two underlying contributors to Australia’s problem of scope. In the first instance, Australia has yet to decide what is a problem-solving court and what is diversion (see our perspective on this above). Perhaps as a direct consequence of this is the oft-cited problem of net-widening, in which courts have an oversupply of cases that “need help” because they have not carefully defined which groups are best served (Bull, 2010; Clancey & Howard, 2006; Indermaur & Roberts, 2003). Some scholars see these courts as one feather in the cap of Australia’s tendency toward paternalism and a preference for state intervention (King, 2008; Spivakovsky & Seear, 2017), with one Australian commenting that problem-solving courts are forms of apartheid justice and social engineering by academic elites that stigmatize and infantilize the defendant (All in the Mind, 2011). In the second instance, problem-solving courts fail to properly assess eligibility or treatment needs. As an illustration, the Queensland drug court has offenders self-diagnose their problems that they think should be addressed; a checklist is accompanied with the instruction that “It is your responsibility to identify issues you know you need to deal with in counselling during your Drug Court program” (Queensland Department of Justice and Attorney General, as cited in Bull, 2010, p. 127). More widely used is the practice of self-selection, where offenders have to opt-in to the problem-solving court. Not only does this voluntary participation skew evaluation results (Fitzgerald, 2008; Kornhauser, 2018), it also demonstrates that Australian courts do not have a firm grasp on who or what the problem is or how to find out. As a consequence of these shortcomings, problem-solving courts have a serious problem of scope; they are simultaneously too broad and too narrow because they lack clear inclusion criteria and targeted treatment plans, driven by a lack of actuarial assessment.

The problem of access

Australia is one of the most urbanized countries in the world, with 89% of the populace living in a small handful of metropolitan areas and 67% living in capital cities (Australian Bureau of Statistics, 2018). Practically, this means that resources are concentrated in these areas, and those living in rural and remote regions of Australia are subsequently disadvantaged. Given that problem-solving courts rely on case collaboration between courts and treatment providers, it is logical that these courts be concentrated in areas where such services are available. Unfortunately, however, this means that problem-solving courts are often restricted to large urban areas that are resource rich. As an illustration, Western Australia (the nation’s largest state geographically) has only one drug court (in the state’s largest city of Perth), while New South Wales (the nation’s largest state in terms of population) has 62 drug courts. The concentration of courts and services in urban areas restricts access to eligible offenders who may need these interventions most (Payne, 2006). Where efforts have been made to establish problem-solving courts in regional areas, offenders may have to travel long distances to meet their treatment requirements or risk being breached. Even metropolitan areas may struggle to supply the demand when problem-solving courts come to town, as resources are finite (Bull, 2010). This can also have the unintended consequence of limiting the resources that are available to community members who are not involved in the criminal justice system (Bartels, 2009).

The problem of substance

Advocates of problem-solving courts fall prey to the illusion that any treatment provided to offenders is a step in the right direction. Unfortunately, not all treatments are created equal, and some “treatments” may actually make the problem worse (Cullen, Jonson, & Mears, 2017). Some treatment programs used by Australian problem-solving courts are simply not effective, and the positive offender outcomes observed relate to pre-existing risk levels or self-selection biases (Kornhauser, 2018; Lim & Day, 2016) rather than the treatment itself. Freiberg (2001a) suggests that problem-solving courts ought to be named “problem-oriented” courts so that the emphasis is placed on the process rather than the outcome; indeed, it is a tall order to purport that these courts can “solve” the problems that prompt criminal behaviour. Even without such hubris, however, these courts do aim to facilitate treatment. The question as to whether these treatments are effective is important and is a matter of accountability for the government agencies that are prescribing the intervention (Cullen et al., 2017; Freiberg, 2001a). As described above, many problem-solving courts do not use actuarial assessments to measure risk, criminogenic needs, or responsivity considerations (Lim & Day, 2013); without such a diagnosis, it is possible that the intervention will be a mismatch. Even when the treatment is appropriate, problem-solving courts rely on the treatment being validated and implemented with fidelity. Irrespective of whether the process of problem-solving courts is effective, the implied mechanism of treatment reducing reoffending will only be actualized when the treatment itself is effective. The knowledge of effective offender interventions is available, so problem-solving courts may require greater organizational capital to coordinate useful treatments (Paparozzi & Schlager, 2009).

The problem of constitutionality

The Australian legal system has encountered problems regarding the legality of problem-solving courts, much like other countries around the world. We use the term “constitutionality” here purposely. While Australia does have a constitution, it does not stipulate legal protections afforded to those accused of crimes (with the exception of the right to a jury trial for federal offences). Rather, criminal law is primarily based on common law and then further developed by individual states and territories. The lack of blanket legal rights at the national level can mean that individuals being processed through the criminal justice system are vulnerable to the local legislation and its interpretation and application (Davidson, Heffernan, Greenberg, Butler, & Burgess, 2016). In this way, problem-solving courts in Australia have a problem with constitutionality because they are not governed by nationwide codified inalienable criminal rights (for a fuller discussion, see Duffy, 2011). Moreover, they are seen by some to violate the incontrovertible rights that comparable documents (such as the American Bill of Rights or the British Magna Carta) afford defendants.

Scholars and activists alike have thus suggested that certain features of Australian problem-solving courts are “unconstitutional” (for a rebuttal, see Stobbs, 2017). The concerns generally relate to three factors. First, the role of the judge is sometimes seen to be compromised. Problem-solving courts violate an important triadic structure in which the judge is an impartial adjudicator between two feuding parties (McCoy, Heydebrand, & Mirchandani, 2015). The Australian Guide to Judicial Conduct states that judges must “avoid stepping into the arena or appearing to take sides” (Australasian Institute of Judicial Administration, 2017, p. 5), which is clearly at odds with problem-solving courts. There are ethical issues in relation to judicial independence, impropriety, and neutrality when the judge is a player in the process (Bartels, 2009). Second, there are concerns around the court medicating rather than adjudicating, particularly around the rights of offenders subject to coerced treatment. Although some suggest that offenders’ rights are not violated when participation in problem-solving courts is voluntary, it is questionable whether people are voluntarily opting-in when the alternative is imprisonment (Jeffries, 2005). Moreover, when treatment is coerced through legal levers, there may be tensions between therapeutic and punitive processes and actors which affect the quality of the treatment and the subsequent outcome (Hall & Lucke, 2010; Thomas & Bull, 2013). Third, there are questions around due process. Some have expressed concerns that the balance between treatment and due process has not yet been found in problem-solving courts, whereby “failures” on the part of the offender (such as treatment or supervision noncompliance) may lead to greater criminalization (Blagg, 2008). Some problem-solving court programs in Australia have an unspecified duration with so many conditions that “it is quite possible that the obligations placed on offenders are unrealistic and will set them up to fail” (Indermaur & Roberts, 2003, p. 141). Indeed, these courts are sometimes criticised as being excessively harsh, beyond the sanctions that would be incurred by defendants processed through traditional courts (Jeffries, 2005). Although the treatment should not be more onerous than the alternative avoided through participation in a problem-solving court, this is not always achieved (Bull, 2010). There are also complications around the timing of events in problem-solving courts: defendants may have to plead guilty to participate; cases can stagnate for long periods; and there is uncertainty around case processing, disposition, and sentencing when an offender withdraws from the specialty court. Offenders in Australia have due process rights, although some problem-solving courts appear to be interpreting these rather liberally at times.

Here again we see that the Australian legal system has struggled to accommodate problem-solving courts into traditional judicial processes. While some states and territories have introduced specialty courts and authorized the judiciary to operate within the confines of existing criminal law (which requires some creativity on the parts of magistrates), other jurisdictions have postponed the introduction of a problem-solving court until supporting legislation could be put in place; both approaches have benefits and drawbacks (Payne, 2006). Nolan (2011) finds that the Australian parliament debates the merits and scope of problem-solving courts far more than one might find in America. Even within the courtrooms themselves, magistrates struggle to balance the principles of therapeutic justice with those of natural and open justice, sometimes deviating from Americanized courtroom practices. Queensland Judge Previtera describes how problem-solving courts may diminish legal safeguards that formerly protected defendants; without these binding traditions, Previtera argues that judges must be responsible for ensuring that therapeutic considerations do not trump an offender’s rights (Nolan, 2011). Realistically, the justice afforded to criminals in the criminal justice system should not be left to the goodwill of individual judges and their own interpretations or enactments of the law. Without procedural safeguards, offenders may be harmed more than they would have been in traditional courts, which therapeutic jurisprudence initiatives were designed to protect against.

Solving the problems of Australia’s problem-solving courts

In balancing the prospects and pitfalls of Australia’s 20-year experiment with problem-solving courts, it seems clear that they have indeed “solved” some of the justice system’s enduring “problems,” although this has been at the expense of a new set of problems. These problems are not insurmountable, although they do require attention if solution-oriented judicial processes are to be retained and their effectiveness maximized. In response to the problems detailed above, we offer five potential solutions toward improving problem-solving courts in Australia.

Improving access

When problem-solving courts were introduced to Australia in the late 1990s, it seemed a reasonable conclusion that they could only be implemented in urban areas; these courts rely on actors and agencies that are concentrated in larger cities, after all. In 2018, this seems less of a valid justification for the lack of problem-solving courts in regional, rural, and remote areas of Australia. There are numerous ways in which technology can be used to support case management and treatment delivery (Cullen et al., 2017), such as online cognitive-behavioural interventions or officer–offender teleconferencing via cellphone. It is a logical and worthy pursuit that a geographically vast but technologically advanced country such as Australia trial these forms of e-support. Particularly considering the results of evaluations that show that Indigenous offenders are less likely to participate in problem-solving courts (and complete programs), efforts to extend access to these courts and their services should be made (Rysavy, Cunningham, & O’Reilly-Martinez, 2011). At a very minimum, the ways in which technical violations or breaches of program conditions are defined need to be reconsidered in areas where access to services is limited (Australian Law Reform Commission, 2017).

Improving assessments

If problem-solving courts are to be effective, they must (1) target individuals with particular problems, (2) understand the nature of that individual’s problem, (3) and implement solutions that target that nature. To accomplish these three objectives, validated assessments are required. Given all that is known about the importance of measuring offending risk, criminogenic needs, and responsivity conditions (Bonta & Andrews, 2017), it is unacceptable for a contemporary treatment-oriented justice practice to not rely on proper tools. Problem-solving court practitioners have identified that some current assessment tools are insufficient (particularly in cases of comorbidity or where the offender is under the influence or mentally unwell at the time of assessment) while others are entirely lacking but required (Lim & Day, 2013; Payne, 2005). Australian problem-solving courts must routinely and reliably use validated instruments for assessing program eligibility (including an individual’s capacity for participation) and treatment needs.

Improving services

Problem-solving courts are premised on the idea that reoffending can be prevented by identifying and intervening in the underlying causes of an individual’s offending. For this to occur, the intervention must be effective. While a large body of research has uncovered the elements of effective treatments, ineffective (or unstudied) treatment efforts abound. When government agencies use legal levers to coerce treatments, they ought to be held to account for the utility of that treatment (Cullen et al., 2017; Freiberg, 2001a). When offenders are given compulsory treatments, those treatments should be individualized and evidence-based (Hall & Lucke, 2010). Evaluations of Australian problem-solving courts rarely comment on the efficacy of the services rendered by external providers. Although court participants generally do better than those in the “control group” (who may deny treatment, receive no or partial treatment, attend a traditional court, or even be imprisoned), this should not be used as summary evidence that the treatment elements of these treatment-oriented courts are effective. Indeed, one study found that the only statistically significant predictor of post-program reoffending was the level of pre-program participant risk (Lim & Day, 2016). Interventions should be evidence based and validated. Treatments must be holistic (as offenders often have complex, multidimensional, and dynamic criminogenic risks and needs) and will therefore require true interagency collaboration that is supported by organizational infrastructures (Paparozzi & Schlager, 2009; Richardson, Thom, & McKenna, 2013). Additionally, problem-solving courts must ensure that social service provisions targeting non-criminogenic needs are not prioritized above effective correctional interventions and that appropriate throughcare is arranged (Freiberg et al., 2016).

Improving processes

Australian problem-solving courts require supporting legislation that redefines the scope, aims, and procedures used, and the processes by which the courts work need to be clearly articulated (Lim & Day, 2013). Problem-solving courts require some degree of flexibility to accommodate local problems and solutions, but this cannot trump the need for standardized practices that protect the accused, manage resources, hold agencies accountable, and promote fairness and equality (Casey & Rottman, 2005). One process that requires careful consideration is intake, particularly surrounding the issue of participant voluntariness. Several studies demonstrate that program participants did not fully understand what they were signing up for (Freeman, 2002; Payne, 2005), The issue of voluntary participation is further problematized when eligible offenders are extended an invitation to join a problem-solving court while facing the threat of incarceration (Jeffries, 2005) or under other inappropriate conditions – such as while under the influence of alcohol or drugs, while psychologically unwell or distressed, or without culturally or linguistically suitable communication (Payne, 2005). The elements of due process also require modifications. The role of guilty pleas in problem-solving courts should be carefully reconsidered (Bull, 2010). More broadly, there is a lack of a consistent legal framework that guides how offenders enter, proceed through, and exit problem-solving court programs. This absence of standardized best practices has led to local innovations that harshly punish participants for relatively minor “failures” (Blagg, 2008; Bull, 2010) and produce low program completion rates (Indermaur & Roberts, 2003). To combat these problems, Australian states and territories must clearly specify the process of problem-solving courts so that decision-making points are structured and equitable.

Improving research

Finally, it is imperative that problem-solving courts in Australia be guided by research evidence, and better evidence is required. While the nation has done well to commission process evaluations and studies of intermediate outcomes, empirical evaluations of the reoffending outcomes of problem-solving courts are lacking. Of the studies that have been performed, some results are not made publicly available while others use questionable social scientific methods. Overall, methodologically rigorous experimental research that examines recidivism (operationalized in many ways) is largely absent, but required (Indermaur & Roberts, 2003; Kornhauser, 2018). Many evaluations do not include a sufficient follow-up period, although in fairness, the life of some problem-solving courts is equally short as they are vulnerable to changes in government (Stobbs, 2017). When a state or territory implements a problem-solving court, either as a trial or with the expectation of permanency, an empirical outcome evaluation must be part of that process. Despite the initial promise of caution and careful evaluations for Australian programs (Freiberg, 2000; Nolan, 2012), some scholars have observed that problem-solving courts are too often declared successful without proof and are then expanded “in the absence of evidence of effectiveness and often in ways that preclude evaluation” (Hall & Lucke, 2010, p. 5; see also Clancey & Howard, 2006). Proponents of problem-solving courts should not fear rigorous outcome evaluations as efforts to discredit; rather, evaluations are needed to better understand not whetherthese courts are effective, but rather how problem-solving courts can be most beneficial.

Conclusion

Since their introduction to Australia 20 years ago, problem-solving courts have struggled to shape their identity and carve out their place in the legal landscape. Although these specialty courts have enjoyed successes, they have had to navigate how to adopt American justice practices in a different national context. As an illustration, while applause is often a key feature in problem-solving court proceedings (such as when an offender completes a stage of a treatment program; Bull, 2010), and some studies show that supportive comments from judicial actors improve outcomes for defendants (King, 2008), one Western Australian magistrate has barred such praise from his courtroom (Nolan, 2011). Whereas American courts rely on impassioned judges who inspire offender change through charismatic authority, the Australian legal landscape lacks this feature (Nolan, 2009). Thus, although the problem-solving courts of Australia differ from their American creators, this gap may be closing. Nolan (2012) makes the case that while problem-solving courts in Australia were originally quite distinct, they have become more “Americanized” in their contemporary manifestations. Freiberg suggests that while it is possible for Australia to selectively borrow from the problem-solving courts in America, “the process of Coca-colonizing Australian criminal justice … has just got to first base” (as cited in Nolan, 2012, p. 164). Australia seems to be at a fork in the road of its problem-solving movement.

In reviewing the experience of problem-solving courts in Australia, we suggest that criminal justice systems should not throw the baby out with the bathwater, although a return to the roots of therapeutic jurisprudence and justice innovation is required. Problem-solving courts are criticized as trying to be all things to all people (Miller, 2004), and it is here that we see complications arising. Problem-solving courts in Australia must decide what they are and what they are not, what they will tackle and what they will not, how they will do it and how they will not. A canon of research from problem-oriented policing and correctional programming demonstrates that both problems and solutions have to be clearly defined for interventions to be effective (Bonta & Andrews, 2017; Clarke & Eck, 2005). From our reading of the available information and evidence, we conclude that Australian problem-solving courts have struggled in both of these aspects: problems are not accurately identified, and solutions are not appropriately tailored. These conditions have produced ill-consequences for programs and their participants that are antithetical to the therapeutic tone that prompted their development. For problem-solving courts to solve problems and for justice to be just, the Australian judiciary must articulate their problems and solutions with greater specificity.

Disclosure statement

No potential conflict of interest was reported by the authors.